Distributorship Agreement
between
1. K Line Europe GmbH, Lilienthalstrasse 70, 40474 Düsseldorf, Germany, herein
represented by its responsible representative, Dr. Sherif Kandil,
– hereinafter referred to as “Principal”
and
2. __________________________, a _____________ duly formed and registered under the
laws of _____________, CR-No. __________________________, _____________street,
___________________town, ____________________, herein duly represented by its
Managing Director _______________________,
– hereinafter referred to as: the „Distributor“ or “Dealer”
The company and the distributor are hereinafter also jointly referred to as the “Parties“.
Preamble
Whereas, Principal is designing, manufacturing and distributing medical products as more
particularly described herein, hereinafter referred to as „Products“; and
Whereas, Principal is interested in expanding its business in the territory as hereinafter
defined (hereinafter referred to as “Territory”) by appointing the Distributor as his exclusive
Distributor for the sale of the Products to third parties residing in the Territory upon the terms
and conditions herein set forth;
Whereas, the Distributor has experience in the import, the distribution and the sale of such
Products in the Territory and is willing to actively and diligently promote the sale of the
Products as exclusive distributor of the Principal in the Territory;
Now, therefore, in consideration of the mutual covenants and conditions herein contained,
and for other good and valuable consideration, the receipt of which is hereby acknowledged,
Principal and Dealer mutually agree as follows:
Article 1:
1.1
Appointment, Legal Status, Registration, Scope of the Agreement
Appointment
(1) Principal hereby appoints the Distributor as his exclusive distributor for the sale of the
Products within the Territory for the duration of this Agreement.
(2) The Distributor shall buy the Products directly and exclusively from the Distributor in
its own name and on its own account. The Distributor then shall promote the sale of
the Products and shall sell the Products in its own name and on its own account to
customers domiciling within the Territory only. The Distributor shall take full
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advantage of the market potential in the Territory. The Distributor shall act as an
independent trader towards both the Principal as well as the customers.
(3) The Distributor procures at its own cost the means of operation and equipment. It is in
a position to assess the financial chances and risks of the activity hereby contractually
assumed. The Principal is therefore not responsible for the profitability of the business
of the Distributor.
(4) The Principal concludes this Agreement relying on the capacity of the present
shareholders/partners and managing directors of the Distributor, as well as on the
commitment that their personal services are available for the performance of this
Agreement. If, therefore, the present management, shareholding or control situation of
the distributor should change or if the circumstances of the distributor should
otherwise change significantly, the distributor undertakes to inform the company
thereof in writing without delay. Therefore, the grant of the distribution of the
Products to the Distributor is unique and may be transferred only under the conditions
established in this Agreement.
1.2
Legal Status
(1) Nothing in this Agreement shall constitute the right of the Distributor to act as an
agent and/or commercial agent of the Principal or to represent the Principal in any way
whatsoever. The Distributor shall have no authority whatsoever to enter into any
obligations on behalf of the Principal. The Distributor shall not be regarded as an
employee or joint venture partner of the Principal.
(2) The Distributor warrants that it is duly authorized, licensed and empowered by the
concerned authorities in the Territory to act as a distributor for the Products in
compliance with the provisions of the relevant laws of the Territory regulating the
import, export and re-sale of the Products and to fully transact the type of business
contemplated by this Agreement.
1.3
Registration
(1) In case that this Agreement and/or the distributorship built by this Agreement has to
be registered in any official or semi-official register of/in the Territory or elsewhere a
written prior approval of the Principal is required at any time.
(2) In case the distributorship established by this Agreement is terminated for whatsoever
reason after its registration, if any, it has to be deleted from any register and the
Distributor undertakes to apply for the deletion of the Agreement/distributorship from
any such register immediately after termination of the Agreement notwithstanding
Principal´s own rights to apply for the deletion, if legally possible.
Article 2:
Products, Products Specification and Supply
(1) This Agreement and any rights and obligations of the Parties resulting there from are
limited to the Products specified in the list as attached as Annex I to this Agreement.
(2) Any extension of this Agreement to other products of the Principal requires the prior
written approval of the Principal.
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(3) Distributor understands and agrees that Principal reserves the right, at any time and
from time to time with advance notice with a minimum of thirty (60) days without
thereby incurring any liability or obligation to Dealer, to
a. change the specifications for or alter the design of any Product, or add new or
additional products to its line of products;
b. change its manufacturing, sourcing, sales and distribution policies; and
c. discontinue the manufacture of any Product or the sale to Dealer of any
Products no longer manufactured or marketed by Principal.
Principal agrees to make commercially reasonable efforts to provide Dealer ninety
(90) days’ advance notice of such action.
(4) Distributor confirms that it is familiar with the specifications of the Products and
undertakes that its orders fully comply with any official requirements and statutory
regulations applicable in the entire Territory. The Distributor undertakes to
continuously advise Principal of all official standards and requirements applicable to
the Products and of any changes thereof without delay.
(5) Distributor shall apply for necessary registration and/or marketing authorization of the
Products in the Territory. All expenses for obtaining such authorizations such as
official fees, costs of documentation shall be borne by the Distributor. Distributor
undertakes to constantly maintain all other regulatory authorization(s) and/or
marketing authorizations which may be required for the sale and distribution of the
Products in the Territory and to fulfill all obligations concerning the import and sale of
the Products and that result from the laws and regulations, which, with regard to
import and sale of the Products, apply to the Territory.
Article 3:
Territory
(1) The active sales rights of the distributor are limited to the geographical territory of
__________________________________.
(2) The Principal reserves the right in the case of serious, in particular, significant
financial and sales policy reasons, e. g. in the case of inadequate sales efforts of the
distributor in spite of advance warning notice thereof, to change the Territory, in
particular, to reduce it if this is appropriate for proper cover of the territory.
(3) The Distributor is not entitled, directly or indirectly, by itself or through others, to
actively sell or actively promote the Products in any other territory outside the
Territory. The Parties agree that at least each of the following behaviors shall
constitute a breach of this Section:
a. the use on the Internet of any other trademarks for the Product other than
individually agreed upon in writing; or
b. the use on the Internet of any other package of the Product than the package of the
Product for the Territory. Distributor may present Principal’s Products with clear
notice of Distributor’s limitation to distribute the Products within the Territory on
Distributor’s own website.
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Article 4: Limited Exclusive Sales Right
(1) The Principal grants the Distributor the exclusive right of sale of the Products in the
Territory for the term of this Agreement. The Principal will not engage any further
distributors in the Territory and will supply branches of third parties in the Territory
with Products only with the approval of the Distributor.
(2) However, transactions with the following customers are excluded from the active sales
right:
a. __________________
b. __________________
c. __________________
The active distribution to this group of customers shall be permitted only subject to
prior approval of the Principal.
(3) The Distributor shall not be entitled to act as agent, representative or distributor, dealer
or alike for products being held competitive to the Products sold within the Territory.
(4) The Distributor shall not solicit any sales of the Products outside of the Territory. He
shall restrict his efforts to advertise and solicit sales of the Products to activities
executed within the Territory.
(5) The Distributor shall not be entitled to engage subcontractors or any other third party
as his subagent without having obtained Principal’s prior written approval to do so.
Such approval shall not be unreasonably withheld.
Article 5: Sales Obligations of the Distributor
(1) Distributor agrees to diligently and aggressively exert its best efforts to promote,
merchandise and sell the Products throughout the Territory.
(2) Distributor agrees to advertise, promote and demonstrate the Products in the Territory
to the best of Distributor’s ability and at its own expense, in accordance with the
advertising and promotional program agreed to between Distributor and Principal. He
shall, in its own responsibility, observe the rules of fair competition.
(3) The Distributor is obliged, at the request of the Principal, to participate at its own
expense in an appropriate extent in trade fairs and exhibitions. The Distributor
undertakes, however, not to participate in such trade fairs if thereby the Principal
would be excluded, in accordance with the applicable trade fair rules, from
international trade fairs or exhibitions in which the Principal wishes to participate.
(4) Distributor shall provide Principal sales reports and information on a quarterly basis.
Distributor shall treat as confidential and safeguard all information, reports and
records pertaining to this Agreement.
(5) Distributor shall submit a rolling twelve (12)-month sales forecast to Principal every
six (6) months commencing on the January 1st or June 1st, first following the effective
date of this Agreement (or, if the effective date of this Agreement is within thirty (30)
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days before any of such dates, commencing on the second such date after the effective
date of this Agreement). Such sales forecast shall include prospective customer names,
quantities, configurations, expected order dates, expected shipping dates and expected
spare parts requirements. If the most recent forecast becomes materially inaccurate at
any time, Distributor shall promptly provide Principal with updated information. The
sales forecast shall be for planning purposes only and Distributor is not required to
purchase the Products projected to be sold on the sales forecast.
(6) Distributor hereby expressly acknowledges that technical data and the direct product
thereof are subject to export controls of the Territory and agrees that neither technical
data nor the direct product thereof will be transferred, directly or indirectly, to any
destination contrary to the requirements of the laws of the Territory, the terms of any
applicable export license, or Principal’s policy prohibiting all sales into selected
countries.
(7) The Distributor shall not during the term of the Agreement without the prior written
consent of the Principal, whether directly or indirectly, itself or through third parties,
act for any other competitor of the Principal which produces and/or distributes and/or
offers competitive pro-ducts which are identical with or similar to those of the
Principal, nor will it establish or conduct or participate in any such competitor or
otherwise support or render advice to such competitor.
(8) Distributor shall present the Products on the premises of its customers and shall train
its customers to operate the Products. Distributor shall employ competent and
experienced service personnel if and so as necessary to render prompt and adequate
service to the users of the Products in the Territory.
(9) The Distributor is obliged to protect the interests of the Principal and not to do
anything which would be appropriate to endanger the reputation, the market position
or the creditworthiness of the company or damage the Principal.
(10)
Dealer may not customize, modify or have customized or modified any Product
unless it obtains the prior written consent of Principal, which consent may be withheld
in the sole discretion of Principal. Any unauthorized customizing or modification of
any Product by Dealer or any third party shall relieve Principal from any obligation or
warranty it would otherwise have had with respect to such Product.
Article 6: Prices and Payments
6.1
Prices and Discount
(1) The Distributor is free in determining its prices and conditions. Dealer shall notify
Principal of its pricing, as in effect from time to time.
(2) At the beginning of each year, the Principal shall send the Distributor the valid price
list with the recommended customer prices. The currently valid price list is attached to
this Agreement as ANNEX II.
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(3) The list prices can be unilaterally changed by the Principal. Any changes to the list
prices will be notified to the Distributor in good time in advance and come into effect
after the expiry of four (4) months.
(4) The purchase prices apply plus VAT as legally applicable from time to time, if any,
plus the transportation costs as further set out in Art. 7.3. herein below.
6.2
Payments
(1) All amounts due and payable with respect to a Product delivered by Principal shall be
paid in full within thirty (30) days after Dealer’s receipt of the invoice covering such
Product. All such amounts shall be paid in the currency quoted in the corresponding
price list or individually offered by wire transfer or credit card or Paypal to such bank
or account as Principal may from time to time designate in writing. Whenever any
amount hereunder is due on a day that is not a business day, i.e. a Saturday, Sunday or
a public holiday in Germany, such amount shall be paid on the next succeeding
business day. Amounts hereunder shall be considered to be paid as of the day on
which funds are received by Principal’s bank.
(2) Principal reserves the right at any time to require payment for all Products delivered
hereunder to be made by irrevocable letter of credit or any other payment terms. If
Principal elects to have payment made by letter of credit, Dealer shall select the
issuing bank, which must be acceptable to Principal. Any such letter of credit shall be
governed by Uniform Customs and Practice for Documentary Credits (UCP) 600.
(3) Principal reserves the right to demand payment on previous shipments before new
shipments are made in case a previous shipment has not been paid in full.
(4) Principal reserves the ownership rights in the Products until all sums owed by Dealer
to Principal in connection with the current business relationship have been paid in full.
Dealer shall handle the Products carefully. In case maintenance and inspection
services are required, Dealer shall have these services performed regularly. Dealer
shall inform Principal immediately about the unauthorized access of third parties to
the Products, e.g. in case of seizure, about possible damages or the destruction of the
goods.
(5) All amounts due and owing to Principal hereunder but not paid by Dealer in full
within thirty (30) days after Dealer’s receipt of the invoice thereof shall bear interest
in the currency quoted in the corresponding price list or individually offered at the rate
of eight per cent (8 %) over the base interest rate of the European Central Bank
(Basiszinssatz). All bank charges are will be borne by the Dealer.
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Article 7: Purchase and Sale of Products; Shipment Costs
7.1
Purchase of Products by Dealer
(1) Dealer shall order Products from Principal by submitting a written purchase order
identifying the Products ordered, requested delivery date and any export/import
information required to enable Principal to fulfill the order. No order for the Products
submitted to Principal by Dealer shall become binding unless and until it is accepted
in writing by Principal.
(2) Principal from time to time may revise the credit terms which may be extended to
Dealer for the purchase of the Products, and require adequate security or collateral.
(3) It is understood and agreed by the Parties hereto that the terms and conditions of this
Agreement shall not be modified or amended by the terms of any purchase order
submitted by Dealer to Principal, and any such conflicting provisions shall be deemed
to be superseded by the terms hereof.
(4) Unless Dealer requests otherwise, all Products ordered by Dealer shall be packed for
shipment and storage in accordance with Principal’s standard commercial practices. It
is Dealer’s obligation to notify Principal of any special packaging requirements (which
shall be at Dealer’s expense). Risk of loss and damage to a Product shall pass to
Dealer upon the delivery of such Product to the common carrier designated by Dealer.
All claims for non-conforming shipments must be made in writing to Principal within
ten (10) days of the passing of risk of loss and damage, as described above. Any
claims not made within such period shall be deemed waived and released.
(5) Distributor acknowledges and understands that the ultimate shipment of orders to
Distributor shall be subject to the right and ability of Principal to make such sales and
obtain required licenses and permits, under all applicable decrees, statutes, rules and
regulations of the government of the Territory and agencies thereof presently in effect
or which may be in effect hereafter. Accordingly, Distributor hereby agrees:
a. to assist Principal in obtaining any such required licenses or permits by supplying
such documentation or information as may be requested by Principal;
b. to comply with such decrees, statutes, rules and regulations of the government of
the Territory and agencies thereof;
c. to maintain the necessary records to comply with such decrees, statutes, rules and
regulations;
d. not to re-export any Products except with the prior written consent of the Principal,
e. to obtain all governmental approvals and licenses necessary to import the Products
into the Territory;
f. not to sell, transfer, or otherwise dispose of the Products in violation of the export
laws of the Territory; and
g. to indemnify and hold harmless Principal from any and all fines, damages, losses,
costs and expenses (including without limitation reasonable attorneys’ fees)
incurred by Principal as a result of any breach of this subsection or subsection
(5.(8) below by Distributor. In furtherance of, but without limiting, the foregoing,
Distributor represents that it has read, understood and will comply with the antibribery provisions of the relevant legislation of the Territory, if any.
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7.2
Sale of Products by Dealer
(1) Dealer is entitled to resell the Products in the ordinary course of business. Dealer
herewith assigns to Principal any and all future claims to accounts payable resulting
from the sale of the Products in an amount equal to the amount invoiced by Principal
to Dealer. Principal herewith accepts this assignment. Dealer is entitled to collect on
the accounts payable. Principal reserves the right, however, to revoke Dealers right to
collect the accounts payable on its own behalf if Dealer does not fulfil its payment
obligations.
(2) Payments from customers/end-users will be handled directly by Dealer through a
portal offered by the Dealer. Other traditional payment methods not limited to
Telegraphic Transfer, Credit Card, etc may be offered to the customers/end-users.
7.3
Shipment costs
(1) Shipment cost shall be distributed as follows:
Sample Flow and Cost
bearing by responsibility
Shipment of Starter Kit from
Germany to Dealer region
Shipment of Impressions
from Dealer location to
Principal in Germany
Shipment of fabricated
Principal´s clinical cases
from Germany to Dealer (e.g.
Aligners, K smile,
K Veeners)
Principal
Yes (only when starter
kits are charged for fees)
Dealer
No
No
Yes
No
Yes
(2) The end user should handle starter kits, it will be ordered online through the gateway.
(3) While the empty boxes and impressions kits will be handled by the Principal if
weren’t included in the normal shipments, Principal shall send it on its costs to be
deducted from the marketing budget offered by Principal to Dealer side.
Article 8: Sales Targets
(1) Dealer undertakes, in return for the exclusivity granted, to take a minimum of 200
cases during the first twelve months of this Agreement. In the probation period (first
six months of this Agreements the Dealer shall take a minimum of 75 cases.
(2) In case the Agreement will be prolonged as stated herein, each year the sales targets
shall be increased automatically by 25% from the previous year’s target, i.e.:
a.
b.
c.
d.
first year 200 cases,
second year 250 cases,
third year 312 cases
and so forth.
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Article 9: Principal´s covenants
(1) The Principal shall support the Distributor to an appropriate extent by the provision of
advertising material (brochures, flyers, etc.) and product related services. The
advertising material remains in the ownership of the company. It shall be returned
after the ending of this agreement without delay unless used up in accordance with its
purpose.
(2) However, during the first year of this Agreement, but only after the successful
completion of the probation period as specified herein, the Principal shall support the
Dealer with marketing material and services with a value of 1000,00 €. Sales Targets
as specified in Art. 8 should be met by end of the probation period to grant the
marketing support effective thereafter.
(3) Notwithstanding the aforesaid, the Principal shall provide technical, scientific and
customer service support for the Dealer to improve the whole experience provided to
the customer.
(4) Principal shall have the option but not the obligation upon request of the Dealer to
support the Dealer in financing half the stand space area in the main dental exhibition
held in the Territory. Other marketing activities may also be recommended to
Principal for consideration to participate jointly with the same cost sharing
arrangements. However, Principal shall always have the opportunity to share or reject
sharing in an exhibition.
Article 10: Warranties
(1) Principal does not grant any guarantees for its Products, unless such guarantee has
been individually agreed in writing.
(2) Should Products be defective, Principal may decide in its sole discretion about
whether to remedy the defect by either repair or replacement.
(3) The warranty period is limited to the statutory warranty period, beginning with the
delivery of the Products to Dealer.
Article 11: Limitation of Liability
(1) Principal shall be liable for damages in cases of willful misconduct, gross negligence,
breach of guarantees or material obligations by Principal’s legal representatives,
employees or agents. In all other cases, the liability of Principal shall be excluded.
(2) If Principal is liable on the merits, the claim for damages shall be limited to the
foreseeable damages typical for the Agreement. This limitation of liability does not
apply if the event giving rise to the liability was caused by willful or grossly negligent
conduct. Compensation of consequential damages, indirect damages, loss of profits,
claims of third parties, interruption in production and/or interruption of operations at
the Distributor or its customers, etc. shall be excluded.
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(3) Above limitation of liability does not apply if the damage caused death, bodily harm
or personal injury. The same applies to claims under the German Product Liability
Act.
(4) The personal liability of the legal representatives, employees or agents of Principal is
limited to the extent to which the liability of Principal is limited.
Article 12: Intellectual Property Rights
(1) This Agreement shall not be construed to give Dealer any right, title or interest in the
trademarks for the Products, or in any trade names, patents, advertising slogans or
copyrighted material used or owned by Principal, but only to permit Dealer to use such
trademarks and any such trade names, patents and advertising matter or copyrighted
material in conformity with this Agreement, on a non-exclusive basis in the Territory
only for the duration of this Agreement, and solely for display or advertising purposes
in connection with selling and distributing the Products in accordance with this
Agreement. The grant of such non-exclusive license shall, however, be free of any
charge.
(2) Subject to the foregoing, Dealer acknowledges the validity of Principal’s patents,
trademarks and trade names used in connection with the sale of the Products, and
agrees to take no action or at any time do or permit any act to be done that would
prejudice or interfere with such validity or ownership or in any way impair the rights
of Principal in such trademarks. All use of the Principal patents and trademarks by
Dealer in accordance with the terms of this Agreement shall inure to the exclusive
benefit of Principal. If the Distributor is in breach of this provision, the Principal is
entitled to terminate this Agreement without notice for good cause.
(3) The Distributor may not in its name obtain protection for or register trademarks, trade
names or other designations of the Principal or such trademarks, trade names or other
designations which are identical or similar to those of the Principal or intellectual
property rights – insofar as these are susceptible to registration – either within or
outside the Territory assigned to it.
(4) The Principal shall not be liable for infringement of intellectual property rights which
arise because of instructions of the Distributor or a use of the Products not foreseeable
by the Principal or because of changes made to them by the Distributor or at its cause.
The Distributor is obliged to ensure for itself whether the Products infringe any
intellectual property rights of third parties in the Territory.
(5) The Distributor is obliged to inform the Principal at the earliest possible time in
writing if a third party alleges or claims in or out of court an intellectual property right
with regard to the Products. Prior to the acknowledgement of any such claim of an
alleged infringement of intellectual property rights, the Principal shall be given the
opportunity to state its position. On request, the Principal is to be given authority to
conduct negotiations or the legal dispute with the third party for its own account and in
its own responsibility.
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Article 13: Secrecy and Confidentiality
(1) The Distributor shall maintain secrecy concerning any business and trade secrets of
the Principal disclosed to it by the Principal or coming to its knowledge in the course
of its work (“Proprietary Information”), including after the termination of this
Agreement.
(2) Documents concerning secret business processes which are disclosed to the
Distributor shall be returned by the Distributor to the Principal without delay after
their use in accordance with instructions, at the latest, however, at the termination of
the Agreement.
(3) Dealer shall disclose the Proprietary Information only to those of its agents and
employees to whom it is necessary in order properly to carry out their duties as limited
by the terms and conditions hereof. Both during and after the term of this Agreement,
all disclosures by Dealer to its agents and employees shall be held in strict confidence
by such agents and employees. During and after the term of this Agreement, Dealer,
its agents and employees shall not use the Proprietary Information for any purpose
other than in connection with Dealer’s sale and distribution of the Products in the
Territory pursuant to this Agreement.
(4) Notwithstanding anything contained in this Agreement to the contrary, Dealer shall
not be liable for a disclosure of the Proprietary Information, if the information so
disclosed: (i) was in the public domain at the time of disclosure without breach of this
Agreement; (ii) was known to or contained in records of Dealer at the time of
disclosure by Principal to Dealer and can be so demonstrated by written evidence; or
(iii) becomes known to Dealer from a source other than Principal that, to the best
knowledge of Dealer, does not have an obligation to maintain the confidentiality of
such information.
(5) Dealer acknowledges that any breach of the provisions of this Section 10 shall result
in serious and irreparable injury to Principal for which Principal cannot be adequately
compensated by monetary damages alone. Dealer shall be responsible for any breach
of the provisions of this Section 10 by any employee, agent, or consultant of Dealer
whenever Dealer has neglected the diligence of a prudent businessman by employing
the employee or contracting the agent or consultant.
Article 14: Term and Termination
(1) This Agreement is concluded for one (1) year effective from the date of signature.
(2) The first six (6) months of the initial period of this Agreement (Art. 14.1) shall be considered
as probation period. During this period both parties may terminate the Agreement with a
notice period of one month to the end of a calendar month.
(3) If not terminated during the probation period or otherwise as provided for herein, this
Agreement will automatically be renewed on a yearly basis without the Parties´
specific request, unless either Party objects to the renewal by written notice to the
other Party no later than sixty (60) days prior to the expiration of the original term or
any renewal term of this Agreement. In addition, the Parties may by mutual written
agreement terminate this Agreement at any time during the term hereof.
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(4) The termination and/or non-renewal notice requires written form. It can, however, be
sent by fax.
(5) The right to terminate this Agreement for good cause by any Party shall remain
unaffected. Good cause for termination by the Principal shall include, but not be
limited to the following:
a. a change in the ownership or management of the Distributor unless
interference with the legitimate interests of the Principal is not thereby to be
anticipated;
b. an other than insignificant breach of obligations out of sales contracts
concluded in the framework of this Agreement, above all, the failure to settle
outstanding purchase price receivables;
c. serious breach of contract leading to the loss of mutual trust or the basis of the
business;
d. application for opening of insolvency proceedings as well as the refusal to
open insolvency proceedings for lack of assets, or the issue of a declaration in
lieu of an oath, or any similar proceeding;
e. full or partial and significant closure of business, with an actual or anticipated
duration of more than eight (8) weeks;
f. Dealer shall dispose, or attempt to dispose, of the rights and privileges granted
hereunder without first obtaining the written consent of Principal;
g. the cessation of the usual business of Dealer;
h. either Party is prevented from substantially performing its obligations
hereunder by any laws, governmental regulations, orders, judicial decrees,
treaties, embargoes, enacted or promulgated by any country or sovereignty or
by any agency thereof, and/or
i.
otherwise specifically mentioned and or provided for in this Agreement or by law.
Article 15: Consequences of the termination/ending of the Agreement
(1) Upon the termination/ending of this Agreement, all rights and privileges granted to
Dealer hereunder shall immediately cease and terminate, and Dealer shall thereupon
discontinue forever the use of the trademarks, trade names and any advertising matter
or copyrighted material relating to the Products.
(2) The termination and/or ending of this Agreement shall not affect the purchase
contracts concluded in the course of its performance. In the event of ordinary
termination, the Principal will continue to supply the Distributor so that the latter can
perform the transactions concluded with third parties in the normal course of business
until the expiry of the Agreement.
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(3) Upon either termination, ending or expiration of this Agreement, as the case may be,
Principal shall have the option to repurchase Dealer’s inventory of Products. Within
thirty (30) days after such termination or expiration, Principal shall elect in writing
either to: (i) permit Dealer to sell off its remaining inventory of Products; provided,
however, that Dealer shall comply with all terms and conditions of this Agreement
restricting such reselling activities in effect immediately prior to termination or
expiration; or (ii) repurchase Dealer’s inventory of Products which are saleable and in
the original packages and unaltered from their original form and design, subject to
Principal’s inspection, test and acceptance. Any such repurchase of Dealer’s inventory
of Products shall be at a price as stated in Principal’s then-current price list.
Repurchased inventory shall be shipped by Dealer, according to Principal’s
instructions. Principal shall pay Dealer for such repurchased Products within thirty
(30) days after Principal receives those Products in one of its facilities, subject to
Principal’s inspection, test and acceptance. Costs of shipment are born by Dealer.
(4) Upon either termination, ending and/or expiration of this Agreement the Distributor
shall have no claim whatsoever arising out of the ending, termination and/or expiration
of the Agreement to indemnity or compensation of any kind or to a settlement, on any
legal ground whatsoever.
Article 16: Jurisdiction and Choice of Law
(1) The courts of Düsseldorf, Germany, shall have exclusive jurisdiction over any claims
by either Party.
(2) This Agreement and all terms and conditions of all transactions hereunder shall be
governed by and construed in accordance with the laws of the Federal Republic of
Germany. The application of the uniform law on international sales (CISG) is
excluded.
Article 17:
Miscellaneous
(1) Publicity
Dealer agrees that any publicity or advertising which shall be released by it in which
Principal is identified in connection with the Products shall be in accordance with the
terms of this Agreement (including, without limitation, the confidentiality provisions
hereof) and with any information or data which Principal has furnished in connection with
this Agreement. Principal shall have the right to review and approve all such publicity and
advertising prior to dissemination thereof by Principal.
(2) Modification
No modification or change may be made in this Agreement except by written instrument
duly signed by a duly authorized representative of each of Dealer and Principal.
(3) Waiver
None of the conditions or provisions of this Agreement shall be held to have been waived
by any act or knowledge on the part of either party, except by an instrument in writing
signed by a duly authorized officer or representative of such party. Further, the waiver by
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either party of any right hereunder or the failure to enforce at any time any of the
provisions of this Agreement, or any rights with respect thereto, shall not be deemed to be
a waiver of any other rights hereunder or any breach or failure of performance of the other
party.
(4) No Rights by Implication
No rights or licenses with respect to the Products or Principal’s trademarks are granted or
deemed granted hereunder or in connection herewith, other than those rights expressly
granted in this Agreement.
(5) Responsibility for Taxes
Taxes, whether in the Territory or any other jurisdiction or country, now or hereafter
imposed with respect to the transactions contemplated hereunder (with the exception of
income taxes or other taxes imposed upon Principal and measured by the gross or net
income of Principal) shall be the responsibility of Dealer, and if paid or required to be
paid by Principal, the amount thereof shall be added to and become a part of the amounts
payable by Dealer hereunder.
(6) Compliance with Laws
Dealer covenants that all of its activities under or pursuant to this Agreement shall comply
with all applicable laws, rules and regulations. In particular, but without limitation, Dealer
shall be responsible for obtaining all licenses, permits and approvals which are necessary
or advisable for sales of the Products in the Territory and for the performance of its duties
hereunder.
(7) Severability of Provisions
If any provision of this Agreement shall be held invalid, such invalidity shall not affect
any other provision which can be given effect without the invalid provision, and to this
end, the provisions of this agreement are intended to be and shall be deemed severable.
(8) Notices
Whenever notice is required to be given under the terms of this Agreement to either party,
such notices are only valid if in writing and addressed to the parties at the respective
addresses shown in the caption hereof or to such other or future address as either party
may specify to the other, and sent by registered or certified mail, postage prepaid and
return receipt requested, or by Federal Express or other comparable courier providing
proof of delivery, or by Fax.
(9) Force Majeure
Performance by either party hereunder will be extended for a period of time equal to
reasonable time lost due to delays beyond the reasonable control of such party (events of
“force majeure”) including acts of God, unforeseeable acts of any governmental official or
agency, civil or military, including fuel or material allocations, gas shortage, gas rationing,
unavoidable accident, unlawful acts of third parties, earthquakes, floods, fires, explosion,
epidemics, vandalism or sabotage, riots, insurrections, civil unrest, wars or war conditions,
shipwrecks, strikes, freight embargoes, lockouts and other industrial or transportational
disturbance, lack of materials, or other causes similar to the foregoing which are beyond
the reasonable control of such party and which prevent it from performing its obligations
under this Agreement in whole or in part for a period of time equal to the period of delay
resulting from the force majeure event. All obligations of the party whose performance is
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delayed as a result of force majeure shall return to being in full force and effect upon the
termination of such occurrence or cause.
(10)
Entire Agreement
This Agreement embodies all agreements and understandings of Principal and Dealer with
respect to the subject matter hereof, and may not be amended or modified except by an
instrument in writing executed by Principal and Dealer.
(11)
Previous Agreements Terminated
This Agreement supercedes any previous agreements between Principal and Dealer
concerning the distribution of Principal’s Products, which previous agreements, if any, are
hereby terminated.
In witness whereof, the appearing Parties hereto have caused this instrument to be executed
by their duly authorized representatives as of ______/______/ 2015.
Principal:
K Line Europe GmbH
Dealer:
__________________________
Signature:
Signature:
.
.
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ANNEXES
ANNEX I Products
Product
Price before Distributor Margin
K Line®
350-1100 Euros
K Smile®
350-500 Euros
Following Products may be added to the Agreement in the future at the sole discretion of the
Principal:

____________________

____________________

____________________
ANNEX II
Price List
 Prices will be discussed in detail in April 2015.
Single Arch
Double Arch
< 9 aligners
XX €
XX €
> 9 aligners
XX €
XX €
> 12 months
XX €
XX €
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